Twitter Sued For Failing To Take Down Images Following DMCA Notices

from the not-automatically-guilty dept

We've pointed out in the past that Twitter has sometimes been overaggressive in suspending accounts based on questionable DMCA claims. So I was a bit surprised to learn that Twitter is being sued by a photographer for failing to take down images. The Jon Brodkin writeup at Ars Technica, linked here, is incredibly thorough, so it's worth reading the whole thing. The short version is that photographer Christopher Boffoli got a lot of attention recently for some of his photographs depicting little people next to giant food items. Not surprisingly, a lot of folks shared those photos around, and one popular way to do so was via Twitter. Boffoli claims that he sent a bunch of DMCA notices, including some over images that were hosted directly by Twitter (Twitter used to just allow third party photo hosting services, but launched its own a while back). I'm a bit surprised that Twitter didn't respond to the DMCA notices by taking down those works.

However, as lawyer Evan Brown correctly explains in Brodkin's article, failing to take down works upon receipt of a DMCA notice does not automatically make one guilty of infringement. It just means they can't directly avail themselves of the safe harbors in the DMCA. They can still make plenty of other arguments for why they have not broken the law. And Brown suggests that there are many reasons why they're likely to prevail:

"If I were Twitter, I would not necessarily be all that concerned about Boffoli's claims, based on the facts as they appear in the complaint," Brown said. "It doesn't look like Twitter has materially contributed to the alleged infringement. Courts have held that just providing a website is not enough to lend material support in another's infringement. And I don't see how Twitter is obtaining any direct financial benefit from the alleged infringement. Moreover, I doubt Boffoli will be able to point to any statements on Twitter's part encouraging its users to infringe copyright. If he can't show any of these things, his secondary liability claims would appear to be dead in the water. But the lawsuit is just beginning—maybe he has some great facts that will come out later. I'm skeptical, though."

Part of Boffoli's claim is that Twitter's terms of service implicate the company, but I think he's misreading that:

...he said that Twitter hosts a large volume of his work in violation of his copyright, and under Twitter's terms of service the company claims a "worldwide, non-exclusive, royalty-free license" to reproduce and distribute that content as it pleases.

That's not quite accurate. The terms of service just say that the user who is doing the upload is granting Twitter such a license to display the work. If that user does not have the right to grant such a license, than the focus should be on that user and their own infringement.

And it's here where Boffoli's arguments get kind of weak. He's suing Twitter because they're a big company... but at the same time he claims that he doesn't mind when people post a few images:

"I'm genuinely humbled and grateful that people are enthusiastic about my work and want to share it," Boffoli told Ars. "If somebody puts a couple of my pictures on a Tumblr page, thats totally fine."

So why sue Twitter? Well he claims it's because "Twitter hosts a large volume of his work." But... right before that he says that it's fine for people to post a few images to Tumblr, meaning that Tumblr, too, almost certainly hosts a "large volume" of his work. And his complaints to Twitter focus on four specific users, who each posted images. But he's not suing the users. And... again, he seems to say that it's okay for the users to share a couple images via a platform like Twitter and Tumblr. But then... in the same breath he claims that those platforms are then liable? That seems to undermine his case.

Finally, Boffoli and his lawyer seem to both complain about his inability to make money on the images... while also being happy that the images went viral, admitting that they've helped raise his profile.

"He gets a ton of notoriety but he doesn't make a lot of money off it yet," [Boffoli's lawyer Keith] Scully said. "He does all his own copyright policing because he can't afford to hire a legion of lawyers and staff to take care of it for him."

"I'm just a working artist, trying to support my studio and myself," Boffoli said. Numerous websites do contact him to ask permission to distribute his work, "which I really appreciate," he noted. "It gives me a chance to provide the work in context, and even to provide images that aren't out there yet."

So... his complaint is that the viral nature of the images made him famous and has created buzz that has resulted in legitimate requests, and he doesn't mind when individuals post up his work, because that helps him. But for some reason he's then suing Twitter. As for having to do all of his own policing, perhaps the better answer is to look for more ways to leverage the viral nature of these images. He notes at another point that some of the images don't link back to him as the original photographer (while others do). Wouldn't it be a lot more productive to send friendly notes to those who shared his images by just asking them to also promote a link to his website and maybe a way to license or commission works? That would actually keep his works viral and encourage sharing, while also driving more people to potentially give him money.

The more the details come out, the more this feels like a "Steve Dallas lawsuit," in which he's suing Twitter not because the company has actually infringed... but because they're a big company with money who might just pay him.

Sounds like Twitter should sue him

It seems like Twitter should sue this guy for getting lots of press and attention through the use of Twitter without anyone paying Twitter one thin dime. Talk about piracy, do you know what kind of money an ad/PR campaign like that would cost?

when i read about this elsewhere, it seemed to me as if the judge wanted to do what they wanted rather than what the law allowed. if what i read is correct, that hardly seems like the right way for a judge behave, regardless of who is involved or what the case is concerned with

IP Rights or Plagiarism

I have for a long time felt that IP laws including Copyright, Patents, and Trademark have gone very far off course from the ideal they pretend to represent. Where I get stuck is how to resolve issues of plagiarism. Whether the item is digital or physical I do not think that someone other than the maker should be able to make the claim that they made it, rather than the actual creator.

This comes up often in writing, and quoting others without attribution is currently frowned upon, sometimes harshly. Yet Shakespeare is often accused of plagiarism, and so far it hasn't hurt him much. But what of those he plagiarized from? In this example and many others we are not talking about money, as Shakespeare or those antecedents are not around to collect. I am talking about correct attribution. I think a creator should get credit, where credit is due.

In the case of physical art, say a statue or a painting, the creator gets compensated when the piece is sold, the first time. Later sales of that same artists works might increase in value, and therefore increase the value of current works of that artist. These types of physical works tend to be signed by the artist, yet that does not stop others from making copies of the works and try to pass them off as originals. This is now and should be in the future, a problem.

In the case of digital, my concern is not that digital items are shared, but that the correct attribution be made. In photography there is watermarking. That is tougher to do with text, or for that matter music. TV stations do this all the time by putting their logos in the corner of the screen so if someone does record it the source is known, however that local station or cable channel are likely not the creators.

When writers plagiarize others, their works are often dismissed. I think a better way to go is to make the appropriate attributions for that writer, and to note that the writer failed to make the attributions themselves. This type of public shaming, to my mind, would be much more effective.

I am not sure of an appropriate answer. What does this community think?

Clarifications

Hey. Thanks for the post and the discussion. Just wanted to jump on with a couple of clarifications.

I understand your confusion about Tumblr use versus Twitter use. This was a miscommunication. What I said was that I don't view instances in which a private blogger posts a couple of my images as a situation worth getting upset about. The fact is that I have given away the free use of my photographs to a lot of individuals, sites and academics who simply pay me the courtesy of spending five minutes to draft an e-mail asking to use the work. I don't think that is too much to ask, especially if my content is going to be used on a site where it is generating traffic, readership and ad revenue for the site owner.

The issue with Twitter hosted images (some of which have been used without any kind of attribution) is that they grab a broad range of rights to use, distribute, make derivative copies of, sublicense, etc. my work. As a working artist there is no reason why I need to sit by while a stranger offers up my content to a large company for free. If their policies weren't so broad, and if there haven't been cases in which people have had their images taken off Twitter and used in media without compensation, I wouldn't have a problem. But in this case my action is designed to make Twitter more responsive to those cases in which legitimate content creators have filed a DMCA takedown.

In truth I've been very successful in monetizing my photographs. While the awareness of my work has been helped by people who shared links to coverage of the work on social media, almost all of the opportunities that have come to me have happened as a result of AUTHORIZED use of my photographs with syndicators, news sites, print media, design and food sites, etc. Fine art photographs from my work are sold in galleries around the world, I've had a full year of shows and exhibitions – including a very successful solo show in New York – and a calendar of international shows through the spring, in addition to licensing deals, editorial and commercial commissions, an a book deal with a major NY publisher.

To date my work has been published – online and in print – in more than 90 countries around the world. So this is absolutely and unequivocally NOT about fame or money. This is about using the law to make Twitter more responsive to takedown requests when their users have hosted content on Twitter-owned servers without permission.

Re: IP Rights or Plagiarism

I can't speak for the "community," but claiming something is yours when it isn't--is lying. Lying is basically wrong.

Omitted, neglected, or incorrect attribution, is more a matter of style and convention. In some cases, they overlap, like when a publication has stated style rules, certain types of ommission may be considered tantamount to misrepresentaion. Even then, it seems to make sense to be slow to assume intentional wrongdoing. There are so many simple accidental ways of running afoul of citation requirements. Even a large block of text copied verbatim can arise due to something as simple as reverting to an earlier version of a file, believing you had proofed every quote because at one point you had, and making an honest mistake.

In reality, in most cases, as long as the infractor owns up to the error, no real harm is done.

So in short, I personally could give a rip about plagiarism outside of academia. I do think a student who makes an academic error on assigned writing should see an appropriate downshift in their grade, that is proportional to the error. Small citation error= small markdown, flat out cheating=failing grade and the enrollment equivalent of soccer's yellow card.

However, as lawyer Evan Brown correctly explains in Brodkin's article, failing to take down works upon receipt of a DMCA notice does not automatically make one guilty of infringement. It just means they can't directly avail themselves of the safe harbors in the DMCA. They can still make plenty of other arguments for why they have not broken the law. And Brown suggests that there are many reasons why they're likely to prevail:

"If I were Twitter, I would not necessarily be all that concerned about Boffoli's claims, based on the facts as they appear in the complaint," Brown said. "It doesn't look like Twitter has materially contributed to the alleged infringement. Courts have held that just providing a website is not enough to lend material support in another's infringement. And I don't see how Twitter is obtaining any direct financial benefit from the alleged infringement. Moreover, I doubt Boffoli will be able to point to any statements on Twitter's part encouraging its users to infringe copyright. If he can't show any of these things, his secondary liability claims would appear to be dead in the water. But the lawsuit is just beginning—maybe he has some great facts that will come out later. I'm skeptical, though."

I don't agree with Evan Brown's assessment of material contribution. If I understand the facts correctly, a Twitter user uploaded a copyrighted image to Twitter's servers, and then the user composed a tweet that included the image. So it's more than just a link to an infringing image that's hosted elsewhere since Twitter actually hosts the image as well as the tweet.

The DMCA safe harbors are not in force since Twitter ignored a takedown notice. I think it's safe to say that Twitter has knowledge of the infringement since it received the takedown notice (which imparts knowledge, actual or constructive). So it boils down to whether Twitter is materially contributing to the infringement. I'd look to the Netcom-Napster-Amazon.com line of cases:

Providing a service that allows for the automatic distribution of all Usenet postings, infringing and noninfringing, goes well beyond renting a premises to an infringer. See Fonovisa, Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492, 1496 (E.D.Cal.1994) (finding that renting space at swap meet to known bootleggers not “substantial participation” in the infringers' activities). It is more akin to the radio stations that were found liable for rebroadcasting an infringing broadcast. See, e.g., Select Theatres Corp. v. Ronzoni Macaroni Corp., 59 U.S.P.Q. 288, 291 (S.D.N.Y.1943). Netcom allows Erlich's infringing messages to remain on its system and be further distributed to other Usenet servers worldwide. It does not completely relinquish control over how its system is used, unlike a landlord. Thus, it is fair, assuming Netcom is able to take simple measures to prevent further damage to plaintiffs' copyrighted works, to hold Netcom liable for contributory infringement where Netcom has knowledge of Erlich's infringing postings yet continues to aid in the accomplishment of Erlich's purpose of publicly distributing the postings. Accordingly, plaintiffs do raise a genuine issue of material fact as to their theory of contributory infringement as to the postings made after Netcom was on notice of plaintiffs' infringement claim.

Under the facts as found by the district court, Napster materially contributes to the infringing activity. Relying on Fonovisa, the district court concluded that “[w]ithout the support services defendant provides, Napster users could not find and download the music they want with the ease of which defendant boasts.” Napster, 114 F.Supp.2d at 919–20 (“Napster is an integrated service designed to enable users to locate and download MP3 music files.”). We agree that Napster provides “the site and facilities” for direct infringement. See Fonovisa, 76 F.3d at 264; cf. Netcom, 907 F.Supp. at 1372 (“Netcom will be liable for contributory infringement since its failure to cancel [a user's] infringing message and thereby stop an infringing copy from being distributed worldwide constitutes substantial participation.”). The district court correctly applied the reasoning in Fonovisa, and properly found that Napster materially contributes to direct infringement.

A&M v. Napster, 239 F.3d 1004, 1022 (9th Cir. 2001) (emphasis added).

Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer,” 443 F.2d 1159, 1162 (2d Cir.1971). See Ellison, 357 F.3d at 1076; Napster, 239 F.3d at 1019; Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996).

We have further refined this test in the context of cyberspace to determine when contributory liability can be imposed on a provider of Internet access or services. See Napster, 239 F.3d at 1019–20. In Napster, we considered claims that the operator of an electronic file sharing system was contributorily liable for assisting individual users to swap copyrighted music files stored on their home computers with other users of the system. Napster, 239 F.3d at 1011–13, 1019–22. We stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” Id. at 1021. Because Napster knew of the availability of infringing music files, assisted users in accessing such files, and failed to block access to such files, we concluded that Napster materially contributed to infringement. Id. at 1022.

The Napster test for contributory liability was modeled on the influential district court decision in Religious Technology Center v. Netcom On–Line Communication Services, Inc. (Netcom), 907 F.Supp. 1361, 1365–66 (N.D.Cal.1995). See Napster, 239 F.3d at 1021. In Netcom, a disgruntled former Scientology minister posted allegedly infringing copies of Scientological works on an electronic bulletin board service. Netcom, 907 F.Supp. at 1365–66. The messages were stored on the bulletin board operator's computer, then automatically copied onto Netcom's computer, and from there copied onto other computers comprising “a worldwide community” of electronic bulletin board systems. Id. at 1366–67 & n. 4 (internal quotation omitted). Netcom held that if plaintiffs *1172 could prove that Netcom knew or should have known that the minister infringed plaintiffs' copyrights, “Netcom[would] be liable for contributory infringement since its failure to simply cancel [the former minister's] infringing message and thereby stop an infringing copy from being distributed worldwide constitute[d] substantial participation in [the former minister's] public distribution of the message.” Id. at 1374.

Although neither Napster nor Netcom expressly required a finding of intent, those cases are consistent with Grokster because both decisions ruled that a service provider's knowing failure to prevent infringing actions could be the basis for imposing contributory liability. Under such circumstances, intent may be imputed. In addition, Napster and Netcom are consistent with the longstanding requirement that an actor's contribution to infringement must be material to warrant the imposition of contributory liability. Gershwin, 443 F.2d at 1162. Both Napster and Netcom acknowledge that services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities. See Napster, 239 F.3d at 1022; Netcom, 907 F.Supp. at 1375. The Supreme Court has acknowledged that “[t]he argument for imposing indirect liability” is particularly “powerful” when individuals using the defendant's software could make a huge number of infringing downloads every day. Grokster, 545 U.S. at 929, 125 S.Ct. 2764. Moreover, copyright holders cannot protect their rights in a meaningful way unless they can hold providers of such services or products accountable for their actions pursuant to a test such as that enunciated in Napster. See id. at 929–30, 125 S.Ct. 2764 (“When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.”). Accordingly, we hold that a computer system operator can be held contributorily liable if it “has actual knowledge that specific infringing material is available using its system,” Napster, 239 F.3d at 1022, and can “take simple measures to prevent further damage” to copyrighted works, Netcom, 907 F.Supp. at 1375, yet continues to provide access to infringing works.

Since Twitter has knowledge that specific infringing images are available using its system and can take simple measures to prevent infringement yet continues to provide access to the images, it can be held liable as a contributory infringer.

Re:

Good one Joe! I was going to write something similar (albeit with less direct quotes) but you beat me to it.

The lawyer seems to miss the point of DMCA entirely. Twitter has a safe harbor initially (they are only a "service provider"), but once informed of the infringement, they need to take action. They can contact the original poster and ask them to either remove the image or provide some sort of "I have the right" detail of claims to use the image. If nothing comes in a short period of time, they are required to either remove the image or become liable in the same manner the original poster.

Safe harbor doesn't mean "don't look", it's "now you know, do something". Twitter now knows, and they are doing nothing. Their safe harbor is gone, and their liability for an infringing image is clear.

Honestly, if they are depending on this lawyer for legal advice in this area, they pretty much seem to deserve to suffer the consequences.

Re: Re:

I don't think the lawyer, Evan Brown, represents anyone involved. He was merely giving an opinion to arstechnica for their article, and then Mike reproduced it here. He says: "Courts have held that just providing a website is not enough to lend material support in another's infringement." That's right perhaps until you throw in the knowledge element, which the DMCA notice provides. Once a website knowingly provides infringing images put there by the site's users, then there is contributory liability for the site. The suit is filed in Washington, which is the Ninth Circuit, so the Napster-Amazon.com cases are the law there. Maybe Brown's got some other cases or arguments in mind. He's a sharp guy.

Re: Re: Re:

The guys representing Tenenbaum also seemed really sharp, until they started to argue some really silly things, and provided their client what many consider to be a horrible defense that lead to him losing the case.

Brown seems to be putting some stuff out there that goes directly against both the wording and the intent of DMCA. It does make you wonder if he has a really good argument.

Then again, it could be like Lessig, all hooked up on the 1st amendment vs copyright issues that the courts have shot down repeatedly. Some arguments sound really good until you have to actually argue them in court. Then they quickly fall to bits.

Re: Re: Re: Re:

Both you Joe and the AC have skipped one important fact though (the rest I actually agree with you both based on US case law)

The DMCA does not state that it IS infringing material, just that it MIGHT in the submitters legal opinion be infringing meaning that for prior knowledge to be used the material in question has to be ips facto Infringing either via the reasonableness test which is highly ambiguous or via an actual court finding that indeed the material in question is infringing without any reasonable defences

The rest though is pretty spot on, though the prior statements of Boffoli do present an equity problem (no matter how he has tried to define and spin his statement here and elsewhere) when he will allow Tumblr (and elsewhere) to host, use, etc the allegedly infringing material though not twitter due to the highly subjective view of "twitter is bigger"

Re: Re:

They are taking action.. inaction is a form of action. They are not required to do anything more or less, though it might be in their legal best interest it is not as you state "required", far from it.

A DMCA is NOT an order it is only a civil procedural note that can be used to show that all appropriate steps have been taken by a plaintiff in the event that the material in question is actually found to be infringing by a court and that they can now bring in the third party (stated on the DMCA) that would normally have immunity under sect230.

Though that does not guarantee that the third party (Twitter in this case) will be found to be contributory. Courts are fickle like that ;)

Re: Streisand Effect morphs into Boffoli Effect?

Um, no. PR agents are a lot cheaper than lawyers. And the results are a lot more predictable. My work has been published to date in more than 90 countries. Just how much more "famous" could I expect to be and why the hell would anyone want to gain notice for conflict as opposed to for my work itself?

And there is a difference in my mind between someone who clears the use of the work first by asking permission to repost it and someone who takes what does not belong to them and then refuses to remove it when asked.

Re: Re: Clarifications

So by your logic, any case with monetary damages attached to it is baseless and motivated only by money? That's a pretty specious argument without even mentioning that plenty of landmark civil rights cases had damages attached to them.

The statutory damages related to this suit seem to have worked better at getting Twitter's attention than the legitimate DMCA complaints I filed months ago that politely asked them to remove my intellectual property from their servers.